R ZZZ INCORPORATED v Secretary of State for TRANSPORT; LOCAL GOVERNMENT and The REGIONS
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GIBBS |
| Judgment Date | 11 April 2003 |
| Neutral Citation | [2003] EWHC 1092 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 April 2003 |
| Docket Number | CO/5550/2002 |
[2003] EWHC 1092 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Gibbs
CO/5550/2002
MISS M MACPHERSON appeared on behalf of the CLAIMANT
MR M GIBBON appeared on behalf of the DEFENDANT
Friday, 11th April 2003
The appellant, ZZZ Incorporated, brings this appeal on a point of law under section 289 of the Town and Country Planning Act 1990 ("the Act"), permission having been given by Pitchford J.
The decision appealed against is that of the Secretary of State for Transport, Local Government and the Regions by his Planning Inspector, Mr Peter Burley. The Inspector had conducted an enquiry and site visit on 13th August 2002 and notified his written decision on 8th November 2002. The decision was upon an appeal, which proved unsuccessful, by the appellant against an enforcement notice issued by the local planning authority, the London Borough of Camden, dated 19th December 20001. The premises to which the enforcement notice related was a residential property at 46 Shoot Up Hill, London NW2 3QB.
It is common ground that at the time of the enforcement notice, the property had been the subject of internal works, which had converted it from its previous layout into nine separate, self-contained flats or studio flats.
The terms of the enforcement notice, so far as material, were as follows:
"3. The Breach of Planning Control Alleged.
Without Planning Permission:
The unauthorised change of use of a house in multiple occupation to 1 one-bedroom self-contained flat, and 8 self-contained studio flats".
This paragraph is quoted as amended or corrected by the Inspector, as to which no point is taken.
"4. Reasons For Issuing This Notice.
a) It appears to the Council that the above breach of planning control has occurred within the last 4 years.
B) The unauthorised development results in the loss of non-self-contained bedsitting accommodation with shared facilities (affordable accommodation), contrary to Policy HG17 of the London Borough of Camden Unitary Development Plan, which seeks to retain such accommodation in support of its aims to provide for a full range of housing types, including affordable housing to meet the needs of the population.
The Council do not consider that planning permission should be given because planning conditions could not overcome these problems.
5. What You Are Required To Do.
1) The use of the whole property as 1 one-bedroomed self-contained flat and 8 self-contained studio flats shall permanently cease.
2) The whole property shall be permanently rearranged to provide non-self-contained bedsitting accommodation, with shared facilities.
You are to comply with the above requirements within 6 months of this notice taking effect".
The appellant within the time allowed appealed against the decision to the Secretary of State. That appeal was made under section 174 of the Act and relied on four of the permitted grounds under section 174(2). Grounds (a) and (d) are no longer relied on in the present appeal. It was contended under (a) that on planning grounds planning consent ought to have been granted; under (d) it was contended that enforcement action was too late because the use had existed since September 1997.
The grounds which remain relevant to the present case are in detail as follows:
"(b) That the breach of control alleged in the enforcement notice has not occurred as a matter of fact …
The property was never a house in multi occupation. The use prior to its conversion was as five self-contained units pursuant to appeal
T/APP/X5218/A/88/086171/P4".
And:
"(f) The steps required to comply with the requirements of the notice are excessive, and lesser steps would overcome the objections … The Council need only request the return of the building into five flats in the event the defective notice is upheld".
In the event, the appellant was compelled in the light of evidence at the enquiry to abandon in part and/or modify these two remaining grounds. The basis of the assertion that the previous use of the property had been as five self-contained flats was the planning permission referred to under the first ground and granted on appeal on 12th July 1988 permitting such use. It emerged, however, that this planning permission had lapsed without ever being implemented. Issues, however, still remained as to what the previous use had been, whether it was lawful, and if it was unlawful, what the lawful use was or would have been. Plainly, the outcome of these issues would affect, at any rate potentially, the validity of the enforcement notice, in that arguably it would be wrong for the planning authority to require the appellant to carry out works the effect of which would be to reinstate the property to a condition consistent only with the previous unlawful use.
In reality, as Miss Macpherson for the appellant wisely conceded, there were only two possible lawful uses: either a dwelling house, which is use class C3 under the Town and Country Planning (Use Classes) Order 1987; or as a house in multi occupation ("HMO"), which, whilst not a separate use class, is recognised as a distinct legal category (see Rogers v Islington London Borough Council, 27 Estates Gazette, 178), and is the subject of statutory control, as well as being recognised in the second respondent's planning policies.
Before the Inspector, it was contended by the appellant, inter alia, that there was no established lawful use of the property as an HMO, as the second respondents were submitting, and, that being the case, the requirement at paragraph 5(2) of the enforcement notice was invalid in law, and in any case it was either excessive or too imprecise to be effective. The requirement, it will be recalled, was effectively to convert or reconvert the property into an HMO.
In dealing with these issues, the Inspector prefaced his remarks by noting that the appellant did not pursue the argument based on the 1988 planning permission, but still contended that the description of the breach was incorrect. He went on as follows:
"5. Turning to the issue of whether the notice is correct to describe the previous use of the property as a house in multiple occupation, I acknowledge that no permission has ever been granted for such a use. However, the evidence that was presented at the 1988 appeal clearly refers to the previous use of the premises as being a house in multiple occupation. It would appear that the property was still being used primarily for this purpose when the Council visited it in 1993. There is no indication that this changed between then and when the appellant commenced the works to divide the property into 9 self-contained units in 1997. Indeed the appellant's builder appears to have confirmed to the Council that the prior use was as a house in multiple occupation.
6. I appreciate that the evidence from electoral registers shows different numbers of people occupying the property at various times with only one person for instance listed in 1989. However, houses in multiple occupation often have a very high turnover of tenants. As such I consider that the evidence of the electoral register as to the number of people occupying such a property at any given time is unlikely to be very reliable. It is even less predictive, in my view, of the manner in which the property was occupied. I am not satisfied therefore that this evidence is sufficient to establish that the house was not in multiple occupation for a period of at least 10 years prior to the change of use occurring.
7. I accept that firm evidence of multiple occupation before 1988 is less clear. However, there is nothing to contradict the Council's assertion that the property was used for this purpose for some time prior to that date. While the property appears to have been vacant at certain times during the relevant period, there is little to indicate the length of any vacancy. There is nothing to suggest that any gap in occupation was of sufficient length to have amounted to a material break in the use that would have prevented the Council from taking enforcement action. There is certainly no indication that the house was put to any other use during these gaps. Consequently, I am not satisfied that there is sufficient evidence to conclude that the previous lawful use of the dwelling was not as a house in multiple occupation. I find therefore that it is appropriate for the notice to refer to this use in the description of the breach.
8. Even if I had concluded otherwise, I am not satisfied that this would have warranted allowing the appeal under ground (b). There is no doubt that a change of the use of the premises to 9 self-contained units has occurred judging from the evidence and what I saw during my site visit. This use does not have the benefit of planning permission. While the previous use of a site is often quoted in the description of the breach, there is no legal obligation for this to be done. It seems to me therefore that had I found that there was genuine doubt as to the previous lawful use in this case it would have been open to me to merely delete the reference to the preceding use. In my view the notice would still be sufficiently clear in its amended form to enable the appellant to know what they had done wrong. In my view such a correction would not have caused any injustice as the matter was fully discussed as the Inquiry.
9. However, for the reasons I have already given I see no need to make...
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